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Bush Administration Plans to Limit Scope of Clean Water Act

Early this year the Bush administration initiated a process to rewrite Clean Water Act rules to narrow the scope of the law. If the administration gets its way, thousands of streams, wetlands and other waters would no longer be protected by the law, allowing industry to dredge, fill or dump waste into them without a permit and without notifying the public. That would undermine efforts to control pollution and floods, and seriously threaten wildlife habitat and public drinking water supplies.

The first phase of this process began on January 15, when the administration announced an "advanced notice of proposed rulemaking" in which it solicited public input on how to narrow the scope of the law. The comment period ended on April 16, and the Environmental Protection Agency and Army Corps of Engineers received more than 135,000 comments, the vast majority of which supported continued federal protection for small streams, ponds and wetlands. Environmental and natural resource agencies from 39 states, including 17 with Republican governors, opposed limiting the scope of the law. Agencies from only three states supported the change. EPA and the Army Corps of Engineers are reviewing the comments and have not announced when they plan to issue their formal proposal.

At the same time it announced its advanced notice, however, the administration issued a "guidance" ordering EPA and the Army Corps of Engineers to immediately stop enforcing the law for as many as 20 million acres of wetlands in the lower 48 states -- even before it finishes the new rulemaking procedure.

The Pretext

Administration officials maintain the proposed rulemaking and guidance are necessitated by a January 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers, 121 S.Ct. 675 (2001) (SWANCC). A 5-4 majority held that the Corps could not protect intrastate, isolated, non-navigable ponds solely based on their use by migratory birds. However, the ruling did not invalidate existing Clean Water Act rules. In fact, the Department of Justice has argued in more than two dozen cases that the SWANCC decision does not necessitate any additional restriction of the scope of the Clean Water Act.

The administration also is using the fact that the Clean Water Act uses the adjective "navigable" as a pretext to narrow the scope of the law. The primary purpose of the 1972 Clean Water Act was to "restore and maintain the chemical, physical, and biological integrity of the nation's waters." To achieve that goal, the law prohibits the discharge of pollutants into "navigable waters," defined in the act as "waters of the United States," without a permit. The law has historically been understood to protect traditionally navigable waters, tributaries of navigable waters, wetlands adjacent to these waters, and other wetlands, streams and ponds that, if destroyed or degraded, could affect interstate commerce.

Developers, mining companies, agribusiness and other industries have lobbied the administration to redefine "waters of the United States" more narrowly to mean only navigable waters, ending Clean Water Act protection for nearly everything else. In response, the administration is proposing in its advance notice of rulemaking to change the rules of the Clean Water Act by creating a new, scientifically illegitimate category of "isolated waters," a term that is not in the law or existing regulations. Whichever waters fall into this new category of "isolated" may no longer be protected under the law. Contrary to some recent news reports, this rule change would not only affect wetlands. Industry proponents argue that streams that do not flow year-round and even non-navigable tributaries of navigable waters should no longer be protected.

The advanced notice asked the public to comment on which waters should be considered "isolated" and whether there are any legitimate bases for protecting those waters under the Clean Water Act. In addition, the notice asked for suggestions for other ways it should change the rules governing the law's scope.

Administration to EPA & Corps: Do Not Protect Waters Without Approval

At the same time it announced the advanced notice, the administration issued a "guidance" directing EPA and Army Corps of Engineer field staff to immediately stop protecting any "isolated" non-navigable waters without case-by-case approval from their headquarters in Washington.

Since the 1970s, EPA and the Corps have protected many waters that are not connected at the surface level to a navigable water -- loosely called "isolated" -- for various reasons, including the fact that they provide water for agriculture and industry, commercially valuable fish and shellfish for fishermen, recreation opportunities for interstate travelers, and habitat for endangered or threatened species.

The new guidance specifically directed field staff to immediately stop protecting so-called isolated waters based upon either their use by endangered or threatened species, or their use by farmers for irrigation. Further, it stated that field staff could no longer protect isolated waters because they provide recreation opportunities or commercial fish or shellfish without prior approval from their headquarters. Conversely, field staff do not need headquarters' approval if they decline to protect any water they consider to be isolated.

Although wetlands and other waters that do not have a direct surface connection to navigable waters are often called "isolated" waters, such a designation is nonsensical from a scientific, hydrological or biological perspective. So-called "isolated" waters, including wetlands, ponds and streams that do not run year-round are connected to the larger aquatic ecosystem via subsurface or overflow hydrological connections, and are critical for protecting the integrity of waters, habitat and wildlife further "downstream." To create a new regulatory category of "isolated" waters that is not protected by the Clean Water Act is scientifically indefensible.

Guidance Cuts Enforcement for as much as 20 Percent of the Nation's Wetlands

The guidance contains a broad and inconclusive discussion of what waters might be considered "isolated." However, it refers specifically to playas, pocosins, and vernal pools as the types of wetlands that are at risk. When the administration announced the new rulemaking and guidance, EPA estimated that as much as 20 percent of the nation's wetlands in the 48 contiguous states -- some 20 million acres -- could fit under the category of "isolated." NRDC and the National Wildlife Federation (NWF) recently issued a joint report on the types of so-called "isolated" wetlands that might be at risk, and the threat posed to birds, amphibians and other wildlife if these waters are no longer protected.

In addition, the guidance is written so broadly that EPA or Army Corps field staff could withdraw protection from many ponds, small and intermittent streams, and tributaries of navigable waters. Although the administration provided no estimate of the number of streams or stream miles that could lose Clean Water Act protection, state data compiled by EPA suggests that at least 60 percent of the nation's streams run intermittently. In many Western states, the number of streams that run intermittently is much higher. In Colorado, for example, 78,000 of the 108,000 stream miles run dry at some point in the year, according to Colorado state data.

The administration argues that states will step in to protect whatever waters lose federal protection. Unfortunately, few states have laws that comprehensively protect their streams and wetlands in absence of Clean Water Act protection. Moreover, even if states did adopt comprehensive protections, their waters would still be vulnerable to damage from surrounding states that do not take similar action. Water does not honor state boundaries: Pollution and floodwaters flow across state lines. In any case, it is unlikely that states can afford new comprehensive water protection programs when most are facing massive budget shortfalls.

From "No Net Loss" to "Pro Net Loss"

In 1990, President George H.W. Bush adopted a national policy of "no net loss" of wetlands. We have not yet achieved that goal, and recent estimates suggest that the country continues to lose 50,000 to 100,000 acres per year. George W. Bush's administration has taken several actions that have made it easier to destroy wetlands and, in practice, has abandoned the policy of no net loss. The administration is sensitive to this charge, and points to its support for several farm bill programs and other financial incentive programs as proof of its continued commitment to "no net loss." But as worthy as these other programs are, they could not compensate for the damage this current rulemaking and guidance will do. The administration's attacks on the Clean Water Act amount to a policy reversal, from "no net loss" to "pro net loss." And, as noted above, it would not only sacrifice wetlands, but also hundreds of thousands of miles of streams across the country.

The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.